Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations 2631 

I. National Technology Transfer 

Advancement Act 

As noted in the notice of 

reconsideration and request for public 

comment, CAA section 12(d) of the 

National Technology Transfer and 

Advancement Act (NTTAA) of 1995 

(Pub. L. 104–113; 15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, business 

practices) developed or adopted by one 

or more voluntary consensus bodies. 

The NTTAA directs EPA to provide 

Congress, through OMB, with 

explanations when EPA does not use 

available and applicable voluntary 

consensus standards. 

This notice of final action on 

reconsideration does not involve 

technical standards. EPA’s compliance 

with CAA section 12(d) of the NTTAA 

has been addressed in the preamble of 

the underlying final OSWI rules (70 FR 

74891, December 16, 2005). 

J. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA submitted a 

report containing the final rules and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the final rules in the 

Federal Register on December 16, 2005. 

The final rules are not ‘‘major rules’’ as 

defined by 5 U.S.C. 804(2). The final 

emission guidelines were effective on 

February 14, 2006. The final NSPS were 

effective on June 16, 2006. The EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the U.S. prior to publication 

of the rule in the Federal Register. 

List of Subjects in 40 CFR Part 60 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Intergovernmental 

relations. 

Dated: January 16, 2007. 

Stephen L. Johnson, 

Administrator. 

[FR Doc. E7–820 Filed 1–19–07; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Chapter 2 

RIN 0750–AF56 

Defense Federal Acquisition 

Regulation Supplement; Emergency 

Acquisitions (DFARS Case 2006–D036) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: DoD has issued an interim 

rule amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to provide a single reference to 

DoD-unique acquisition flexibilities that 

may be used to facilitate and expedite 

acquisitions of supplies and services 

during emergency situations. 

DATES: Effective date: January 22, 2007. 

Comment date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before March 23, 2007, to be 

considered in the formation of the final 

rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2006–D036, 

using any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: dfars@osd.mil. Include 

DFARS Case 2006–D036 in the subject 

line of the message. 

• Fax: (703) 602–0350. 

• Mail: Defense Acquisition 

Regulations System, Attn: Mr. Gary 

Delaney, OUSD (AT&L) DPAP (DARS), 

IMD 3C132, 3062 Defense Pentagon, 

Washington, DC 20301–3062. 

Æ Hand Delivery/Courier: Defense 

Acquisition Regulations System, Crystal 

Square 4, Suite 200A, 241 18th Street, 

Arlington, VA 22202–3402. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Gary Delaney, (703) 602–0131. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Item II of Federal Acquisition Circular 

2005–11, published at 71 FR 38247 on 

July 5, 2006, added Part 18 to the 

Federal Acquisition Regulation (FAR). 

FAR Part 18 provides a single reference 

to Governmentwide acquisition 

flexibilities that may be used to 

facilitate and expedite acquisitions of 

supplies and services during emergency 

situations. This interim DFARS rule 

adds a new Part 218 to provide a single 

reference to the additional acquisition 

flexibilities available to DoD. 

Consistent with the FAR, the 

flexibilities in DFARS Part 218 are 

divided into two subparts. The first 

subpart, entitled ‘‘Available Acquisition 

Flexibilities’’ identifies the DoD 

flexibilities that may be used anytime 

and do not require an emergency 

declaration. The second subpart, 

entitled ‘‘Emergency Acquisition 

Flexibilities’’ identifies the DoD 

flexibilities that may be used only after 

an emergency declaration or designation 

has been made by the appropriate 

official. The second subpart is further 

divided into three sections: Contingency 

operation; Defense or recovery from 

certain attacks; and Incidents of national 

significance, emergency declaration, or 

major disaster declaration. 

DoD would like to hear the views of 

interested parties on the sufficiency of 

these provisions. In particular, DoD is 

interested in receiving input as to 

whether the provisions sufficiently 

clarify the existing DFARS flexibilities 

that can be used in emergency situations 

or whether more detailed, 

comprehensive coverage is needed. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. Regulatory Flexibility Act 

DoD does not expect this rule to have 

a significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., 

because the rule is a compilation of 

existing authorities, and makes no 

change to DoD contracting policy. 

Therefore, DoD has not performed an 

initial regulatory flexibility analysis. 

DoD invites comments from small 

businesses and other interested parties. 

DoD also will consider comments from 

small entities concerning the affected 

DFARS subparts in accordance with 5 

U.S.C. 610. Such comments should be 

submitted separately and should cite 

DFARS Case 2006–D036. 


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2632 Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply, because the rule does not 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

D. Determination to Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

that urgent and compelling reasons exist 

to publish an interim rule prior to 

affording the public an opportunity to 

comment. This action is necessary to 

improve DoD’s ability to expedite 

acquisitions of supplies and services 

during emergency situations. Comments 

received in response to this interim rule 

will be considered in the formation of 

the final rule. 

List of Subjects in 48 CFR Chapter 2 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR Chapter 2 is 

amended as follows: 

■ 1. The authority citation for 48 CFR 

Chapter 2 continues to read as follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

Chapter 1. 

■ 2. 48 CFR part 218 is added to read 

as follows: 

PART 218—EMERGENCY 

ACQUISITIONS 

Subpart 218.1—Available Acquisition 

Flexibilities 

Sec. 

218.170 Additional acquisition flexibilities. 

Subpart 218.2—Emergency Acquisition 

Flexibilities 

218.201 Contingency operation. 

218.202 Defense or recovery from certain 

attacks. 

218.203 Incidents of national significance, 

emergency declaration, or major disaster 

declaration. 

Authority: 41 U.S.C. 421 and 48 CFR 

Chapter 1. 

Subpart 218.1—Available Acquisition 

Flexibilities 

218.170 Additional acquisition flexibilities. 

Additional acquisition flexibilities 

available to DoD are as follows: 

(a) Circumstances permitting other 

than full and open competition. Use of 

the authority at FAR 6.302–2, Unusual 

and compelling urgency, may be 

appropriate under certain 

circumstances. See PGI 206.302–2. 

(b) Use of advance Military 

Interdepartmental Purchase Request 

(MIPR). For urgent requirements, the 

advance MIPR may be transmitted 

electronically. See PGI 208.7004–3. 

(c) Use of the Governmentwide 

commercial purchase card. 

Governmentwide commercial purchase 

cards do not have to be used for 

purchases valued at or below the micropurchase threshold if the place of 

performance is entirely outside the 

United States. See 213.270(c)(1). 

(d) Master agreement for repair and 

alteration of vessels. The contracting 

officer, without soliciting offers, may 

issue a written job order for emergency 

work to a contractor that has previously 

executed a master agreement, when 

delay would endanger a vessel, its cargo 

or stores, or when military necessity 

requires immediate work on a vessel. 

See 217.7103–4, 252.217–7010, and PGI 

217.7103–4. 

(e) Spare parts breakout program. An 

urgent immediate buy need not be 

delayed if an evaluation of the 

additional information cannot be 

completed in time to meet the required 

delivery date. See PGI 217.7506, 

paragraph 1–105(e). 

(f) Storage and disposal of toxic and 

hazardous materials. Under certain 

emergency situations, exceptions apply 

with regard to the prohibition on storage 

or disposal of non-DoD-owned toxic or 

hazardous materials on DoD 

installations. See 223.7102(a)(3) and (7). 

(g) Authorization Acts, 

Appropriations Acts, and other 

statutory restrictions on foreign 

acquisition. Acquisitions in the 

following categories are not subject to 

the restrictions of 225.7002, Restrictions 

on food, clothing, fabrics, specialty 

metals, and hand or measuring tools: (1) 

Acquisitions at or below the simplified 

acquisition threshold; (2) Acquisitions 

outside the United States in support of 

combat operations; (3) Acquisitions of 

perishable foods by or for activities 

located outside the United States for 

personnel of those activities; (4) 

Acquisitions of food, specialty metals, 

or hand or measuring tools in support 

of contingency operations, or for which 

the use of other than competitive 

procedures has been approved on the 

basis of unusual and compelling 

urgency in accordance with FAR 6.302–

2; (5) Emergency acquisitions by 

activities located outside the United 

States for personnel of those activities; 

and (6) Acquisitions by vessels in 

foreign waters. See 225.7002–2. 

(h) Rights in technical data. The 

agency head may notify a person 

asserting a restriction that urgent or 

compelling circumstances (e.g., 

emergency repair or overhaul) do not 

permit the Government to continue to 

respect the asserted restriction. See 

227.7102–2; 227.7103–5; 227.7103–13; 

227.7104; 227.7203–13; 252.227–7013; 

252.227–7014; 252.227–7015; 252.227–

7018; and 252.227–7037. 

(i) Tax exemption in Spain. If copies 

of a contract are not available and dutyfree import of equipment or materials is 

urgent, the contracting officer may send 

the Joint United States Military Group 

copies of the Letter of Intent or a similar 

document indicating the pending 

award. See PGI 229.7001. 

(j) Electronic submission and 

processing of payment requests. 

Contractors do not have to submit 

payment requests in electronic form for 

awards made to foreign vendors for 

work performed outside the United 

States or for purchases to support 

unusual or compelling needs of the type 

described in FAR 6.302–2. See 

232.7002(a)(2) and (5). 

(k) Mortuary services. In an epidemic 

or other emergency, the contracting 

activity may obtain services beyond the 

capacity of the contractor’s facilities 

from other sources. See 237.7003(b) and 

252.237–7003. 

Subpart 218.2—Emergency Acquisition 

Flexibilities 

218.201 Contingency operation. 

(1) Selection, appointment, and 

termination of appointment. Contracting 

officer qualification requirements 

pertaining to a baccalaureate degree and 

24 semester credit hours of business 

related courses do not apply to DoD 

employees or members of the armed 

forces who are in a contingency 

contracting force. See 201.603–2(2). 

(2) Policy for unique item 

identification. Contractors will not be 

required to provide DoD unique item 

identification if the items, as 

determined by the head of the agency, 

are to be used to support a contingency 

operation. See 211.274–2(b). 

(3) Use of the Governmentwide 

commercial purchase card. 

Governmentwide commercial purchase 

cards do not have to be used for 

purchases valued at or below the micropurchase threshold if the purchase or 

payment is for an overseas transaction 

by a contracting officer in support of a 

contingency operation, or for training 

exercises in preparation for overseas 

contingency, humanitarian, or 

peacekeeping operations. See 

213.270(c)(3) and (5). 

(4) Governmentwide commercial 

purchase card. A contracting office 

supporting a contingency operation or a 

humanitarian or peacekeeping operation 


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Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations 2633 

may use the Governmentwide 

commercial purchase card to make a 

purchase that exceeds the micropurchase threshold but does not exceed 

the simplified acquisition threshold if 

certain conditions are met. See 

213.301(3). 

(5) Imprest funds and third party 

drafts. Imprest funds are authorized for 

use without further approval for 

overseas transactions at or below the 

micro-purchase threshold in support of 

a contingency operation or a 

humanitarian or peacekeeping 

operation. See 213.305–3(d)(iii)(A). 

(6) Standard Form (SF) 44, Purchase 

Order-Invoice-Voucher. SF 44s may be 

used for purchases not exceeding the 

simplified acquisition threshold for 

overseas transactions by contracting 

officers in support of a contingency 

operation or a humanitarian or 

peacekeeping operation. See 

213.306(a)(1)(B). 

(7) Undefinitized contract actions. 

The head of the agency may waive 

certain limitations for undefinitized 

contract actions if the head of the 

agency determines that the waiver is 

necessary to support a contingency 

operation or a humanitarian or 

peacekeeping operation. See 217.7404–

5(b). 

(8) Prohibited sources. DoD personnel 

are authorized to make emergency 

acquisitions in direct support of U.S. or 

allied forces deployed in military 

contingency, humanitarian, or 

peacekeeping operations in a country or 

region subject to economic sanctions 

administered by the Department of the 

Treasury, Office of Foreign Assets 

Control. See 225.701–70. 

(9) Authorization Acts, 

Appropriations Acts, and other 

statutory restrictions on foreign 

acquisition. Acquisitions in the 

following categories are not subject to 

the restrictions of 225.7002, Restrictions 

on food, clothing, fabrics, specialty 

metals, and hand or measuring tools: (1) 

Acquisitions at or below the simplified 

acquisition threshold; (2) Acquisitions 

outside the United States in support of 

combat operations; (3) Acquisitions of 

perishable foods by or for activities 

located outside the United States for 

personnel of those activities; (4) 

Acquisitions of food, specialty metals, 

or hand or measuring tools in support 

of contingency operations, or for which 

the use of other than competitive 

procedures has been approved on the 

basis of unusual and compelling 

urgency in accordance with FAR 6.302–

2; (5) Emergency acquisitions by 

activities located outside the United 

States for personnel of those activities; 

and (6) Acquisitions by vessels in 

foreign waters. See 225.7002–2. 

(10) Electronic submission and 

processing of payment requests. 

Contractors do not have to submit 

payment requests in electronic form for 

contracts awarded by deployed 

contracting officers in the course of 

military operations, including 

contingency operations or humanitarian 

or peacekeeping operations. See 

232.7002(a)(4). 

218.202 Defense or recovery from certain 

attacks. 

Policy for unique item identification. 

Contractors will not be required to 

provide DoD unique item identification 

if the items, as determined by the head 

of the agency, are to be used to facilitate 

defense against or recovery from 

nuclear, biological, chemical, or 

radiological attack. See 211.274–2(b). 

218.203 Incidents of national significance, 

emergency declaration, or major disaster 

declaration. 

(1) Establishing or maintaining 

alternative sources. PGI contains a 

sample format for Determination and 

Findings citing the authority of FAR 

6.202(a), regarding exclusion of a 

particular source in order to establish or 

maintain an alternative source or 

sources. Alternate 2 of the sample 

format addresses having a supplier 

available for furnishing supplies or 

services in case of a national emergency. 

See PGI 206.202. 

(2) Electronic submission and 

processing of payment requests. 

Contractors do not have to submit 

payment requests in electronic form for 

contracts awarded by contracting 

officers in the conduct of emergency 

operations, such as responses to natural 

disasters or national or civil 

emergencies. See 232.7002(a)(4). 

[FR Doc. E7–730 Filed 1–19–07; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 244, 246, and 252 

RIN 0750–AF12 

Defense Federal Acquisition 

Regulation Supplement; Notification 

Requirements for Critical Safety Items 

(DFARS Case 2004–D008) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD has issued a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to add policy regarding 

notification of potential safety issues 

under DoD contracts. The rule contains 

a contract clause requiring contractors 

to promptly notify the Government of 

any nonconformance or deficiency that 

could impact item safety. 

DATES: Effective Date: January 22, 2007. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mark Gomersall, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), IMD 3C132, 3062 

Defense Pentagon, Washington, DC 

20301–3062. Telephone (703) 602–0302; 

facsimile (703) 602–0350. Please cite 

DFARS Case 2004–D008. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This final rule contains a new 

contract clause requiring contractors to 

notify the Government of any 

nonconformance or deficiency that 

could impact the safety of items 

acquired by or serviced for the 

Government. The rule is a result of 

Section 8143 of the Fiscal Year 2004 

DoD Appropriations Act (Pub. L. 108–

87), which required examination of 

appropriate standards and procedures to 

ensure timely notification to the 

Government and contractors regarding 

safety issues, including defective parts. 

DoD published a proposed rule at 70 

FR 44077 on August 1, 2005. Thirteen 

respondents submitted comments on the 

proposed rule. A discussion of the 

comments is provided below. 

1. Comment: One respondent 

recommended amending the clause 

prescription at DFARS 246.371(a)(2) and 

(3) to change the term ‘‘system’’ to 

‘‘critical safety system.’’

DoD Response: The term ‘‘system’’

relates to an assemblage of subsystems, 

assemblies, and components that 

comprise an end item. Adding ‘‘critical 

safety’’ to the term ‘‘system’’ is 

unnecessary and would be confusing 

where major or less-than-major systems 

are not described in terms such as 

‘‘critical safety.’’

2. Comment: Five respondents 

suggested requiring the use of the 

Government-Industry Data Exchange 

Program (GIDEP) as the method for 

notification of safety issues and for 

reporting all types of technical data and 

reliability information. 

DoD Response: The primary objective 

of this DFARS rule is to ensure that 

contractors who have delivered 

defective products with potential safety 

implications notify affected contracting 

offices quickly, using whatever method 


sroberts on PROD1PC70 with RULES